Susan Khoury v. The Miami-Dade County School Board ( 2021 )

USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 1 of 31
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11430
________________________
D.C. Docket No. 1:16-cv-20680-RNS
SUSAN KHOURY,
Plaintiff - Appellant,
versus
THE MIAMI-DADE COUNTY SCHOOL BOARD,
GREGORY WILLIAMS,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 7, 2021)
Before MARTIN, GRANT, and LAGOA, Circuit Judges.
MARTIN, Circuit Judge:
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 2 of 31
Susan Khoury appeals the District Court’s grant of summary judgment to the
Miami-Dade County School Board and Officer Gregory Williams on her 42 U.S.C.
§ 1983 claims. All of Ms. Khoury’s claims relate to an incident involving Officer
Williams—a School Board Police Officer—who characterized Khoury as being a
danger to herself or others, detained her, and committed her for an involuntary
mental health examination under Florida’s Baker Act, Fla. Stat. § 394.463. After
careful review, and with the benefit of oral argument, we reverse the District
Court’s order granting summary judgment to Officer Williams on Ms. Khoury’s
false arrest and First Amendment retaliation claims, and remand for further
proceedings. We affirm the court’s order granting summary judgment to the
School Board.
I. BACKGROUND
A. THE 2015 INCIDENT
Ms. Khoury lives near the Glades Middle School baseball field in Miami-
Dade County, Florida. For several years, she complained to the School Board
about cars she believed were parked illegally around the baseball field because the
gates to the field were left open. The use of the field became a nuisance to Ms.
Khoury and several of her neighbors because of the noise, lights, and problems
caused by the influx of people (including an increase in burglaries). Ms. Khoury
and 62 of her neighbors notified the School Board of their concerns about these
2
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 3 of 31
problems and, in response, the School Board agreed to close the gates adjacent to
the neighborhood in an attempt to redirect people to use the facility’s parking lot,
which is farther away from the residents’ homes. However, when the problems
continued, Ms. Khoury began taking photos and videos of cars that she believed
were illegally parked near the field so she could show the School Board that the
problem had not been resolved.
On the night of January 29, 2015, Ms. Khoury began taking photographs of
the open, unlocked gate and what she believed were two illegally parked cars. A
parent of one of the ball players, Doris Zubilliaga, was sitting in one of the cars
and thought Ms. Khoury was filming her. Ms. Khoury and Ms. Zubilliaga had a
verbal confrontation, which led Zubilliaga to call the police. About 20 minutes
later, Officer Williams arrived on the scene. Officer Williams is a Miami-Dade
Public School police officer. The Miami-Dade Public School Police Department is
a law enforcement entity separate from the Miami-Dade Police Department and
has its own jurisdiction.
He spoke first with Ms. Zubilliaga, who told him that she was sitting in her
car when Ms. Khoury came up to her and began taking photos of her children. She
said that Ms. Khoury got combative and aggressive with her when she asked
Khoury to stop filming. At this point, Ms. Zubilliaga and Officer Williams were
standing across the street from Ms. Khoury, so Officer Williams crossed the street
3
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 4 of 31
to Khoury and asked her to come speak to him by his car. Ms. Khoury refused
because she wanted to avoid further confrontation with Ms. Zubilliaga. She
instead attempted to explain her side of the story to Officer Williams from where
she was. Officer Williams says he told Ms. Khoury the cars were not illegally
parked, but she did not believe him. Ms. Khoury disputes that she and Officer
Williams had this discussion. Officer Williams then walked away from Ms.
Khoury and, as reflected in a video Khoury recorded, she asked Williams for his
name. Officer Williams did not respond.
Officer Williams headed back across the street to speak with Ms. Zubilliaga.
Ms. Zubilliaga asked him to report the incident, but Officer Williams said there
was nothing he could do about Ms. Khoury filming because it was her First
Amendment right to do so. He acknowledged the filming may be annoying, but
told Ms. Zubilliaga that Ms. Khoury was “not mentally well.” Other residents
complained to Officer Williams about Ms. Khoury and told him that she would
often take photos and videotape their children at the baseball field. One person
told Officer Williams that when the residents would ask her to stop, Ms. Khoury
would “get in their face” and several residents said they were “afraid of her.”
While Officer Williams was speaking to Ms. Zubilliaga for the second time,
Ms. Khoury walked across the street to film the license plate on Officer Williams’s
police cruiser because he had not identified himself to her. When Officer Williams
4
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 5 of 31
noticed Ms. Khoury recording him and his vehicle, he asked why she was filming
him. Officer Williams then raised his arm while in close proximity to Ms. Khoury
in order to block the “bright light from [Khoury’s] camera” that was shining “in
[his] eyes.” During these developments, Ms. Khoury’s phone stopped recording.
Thus, the only evidence about what happened from this point until Ms. Khoury
was handcuffed comes from the testimony of Khoury, Officer Williams, and Ms.
Zubilliaga.
All three eyewitnesses describe different versions of what happened next.
Ms. Khoury claims Officer Williams “charged” her when he saw she was
recording. She says that as she took a step back to get away from him, Officer
Williams grabbed her arm and twisted it behind her back. Officer Williams said he
held his hand up to shield his face from the light on Ms. Khoury’s phone camera
and that Khoury either “reache[d]” for him or “pushed” him. Either way,
according to Officer Williams’s version of the events, whatever Ms. Khoury did
startled him, which caused him to lose his footing, stumble, and fall, as Khoury did
“a flop on the ground, just boom.” According to Ms. Zubilliaga’s version, Ms.
Khoury pushed Officer Williams and, after Williams placed his hands on Khoury,
Khoury “appeared to throw herself on the ground, which almost caused Officer
Williams to stumble and trip.” Ms. Khoury vehemently disputes Officer
Williams’s and Ms. Zubilliaga’s claims that she pushed him.
5
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 6 of 31
The parties agree that at some point, Officer Williams attempted to handcuff
Ms. Khoury. And sometime during the altercation, Ms. Khoury heard a popping
sound in her elbow and felt pain shooting down her arm, which caused her to
scream in pain. Officer Victor Agosto, an off-duty police officer of the
neighboring Homestead Police Department, was at the baseball field and came
over to the scene to try and help Officer Williams take Ms. Khoury into custody.
Officer Agosto was not in uniform. Ms. Zubilliaga filmed the remaining events.
While on the ground, Ms. Khoury squirmed around, yelled “false arrest,”
and asked someone to “call Metro-Dade.” In Ms. Khoury’s mind, Officer
Williams had gone “rogue” and was illegally arresting her, and “some strange man
[came] out of nowhere” to help him. She called out for “Metro-Dade” because she
believed another agency needed to step in and stop these people from “illegally
touching” her. 1 In response to Ms. Khoury’s statement “this is a false arrest,”
Officer Williams “acknowledged to her” that he was going to commit her for an
involuntary mental health examination under the Baker Act. Upon gaining control
over Ms. Khoury and handcuffing her, Officer Williams detained her pursuant to
the Baker Act and took her to a hospital, where she received treatment for a
dislocated elbow. 2 She was then transferred to Miami Behavioral Health Center
1
The Miami-Dade Police Department used to be called the Metro-Dade Police
Department.
2
Ms. Khoury’s dislocated elbow required surgery.
6
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 7 of 31
for a mental health examination, where, on arrival, Officer Williams stated he
“thought [Ms. Khoury] was delusional.” However, Miami Behavioral Health
Center found that there was “no evidence of . . . psychosis.” Ms. Khoury was
released on January 31, 2015, which was two days after the incident with Officer
Williams.
Ms. Khoury filed suit against Officer Williams and the School Board. She
alleged several claims under § 1983, including claims against the School Board
based on municipal liability under Monell v. Department of Social Services, 436
U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978), and claims against Officer Williams
for false arrest, excessive force, and First Amendment retaliation.
B. PROCEDURAL HISTORY
Ms. Khoury’s claim against the School Board is based on her belief that in
2012—three years before her Baker Act detention—the School Board developed
an unwritten policy of improperly detaining people under the Baker Act to reduce
crime statistics.3 On August 23, 2016, Ms. Khoury served the School Board with
her First Request for Production and asked for all of the Baker Act incident reports
from January 1, 2008 to the present day. The School Board produced thousands of
documents showing each Baker Act incident. After Ms. Khoury’s counsel
3
After the incident, Ms. Khoury discovered newspaper articles, published around 2012,
describing the School Board’s practice of directing School Board police officers to use Baker
Act detentions as an alternative to arrests.
7
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 8 of 31
examined some of the incident reports, counsel realized the School Board had
redacted the names, dates of birth, and contact information of the people in the
reports.
Ms. Khoury filed three separate motions to compel the School Board to
provide her with unredacted Baker Act reports. The Magistrate Judge denied Ms.
Khoury’s first motion without prejudice pending the judge’s own “review of and
discovery with respect to the unredacted Baker Act Reports for adults.” Ms.
Khoury narrowed the scope of her second motion and asked only for “certain”
unredacted reports. The Magistrate Judge denied Ms. Khoury’s request for reports,
but allowed additional discovery so Khoury could depose principals, teachers, and
staff involved in the specific incidents. After taking those depositions, Ms. Khoury
moved to compel unredacted reports for a third time, arguing that she needed to
“speak with the students who were Baker Acted” to determine the veracity of the
version of events provided by the School Board. The Magistrate Judge granted
Ms. Khoury’s motion but limited the scope of the order, noting that:
1. Subject to their consent, Plaintiff may conduct the
depositions of parents or guardians of the six students
involved in the Baker Act incidents for which Plaintiff
has already deposed . . . [certain witnesses] . . . . To this
end, counsel for [the School Board] shall contact each
such parent or guardian to inquire if they consent to be
deposed in a neutral, non-partisan communication. For
the parents or guardians who agree, counsel for the
School Board shall forward the contact information to
Plaintiff’s counsel.
8
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 9 of 31
2. Plaintiff may conduct depositions of witnesses for ten
additional Baker Act incidents that occurred prior to
Plaintiff’s Baker Act incident, limited to no more than
two witnesses per incident.
Ms. Khoury objected to this order, arguing that the Magistrate Judge erred in
(1) denying her request for “the names and contact information of all students
involved in Baker Act incidents from January 2008 through 2016”; (2) limiting her
to depositions “of the parents or guardians” of the six students involved in the
Baker Act incidents, rather than the students themselves; and (3) requiring
“counsel for the Miami-Dade County School Board to contact the parents or
guardians concerning the depositions” and limiting Khoury’s counsel’s ability to
do so. The District Court affirmed the Magistrate Judge’s order, finding the order
“is not clearly erroneous or contrary to law,” and “appropriately balance[s] the
privacy rights of the minors involved in the Baker Act incidents with [Ms.
Khoury’s] need to obtain discovery in support of her Monell claim.” The District
Court rejected Ms. Khoury’s third argument, saying that the order specifically
directed the School Board’s counsel to act neutrally, and if Khoury had “reason to
believe that the communication is not neutral,” she could file a motion.
In November 2017, Officer Williams and the School Board each moved for
summary judgment. Ms. Khoury opposed both motions. The District Court
granted summary judgment to both defendants in March 2018. Ms. Khoury timely
9
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 10 of 31
appealed from the summary judgment order and the order denying her third motion
to compel the Baker Act records.
II. STANDARDS OF REVIEW
We review de novo a grant of summary judgment, applying the same legal
standards applied by the district court in the first instance. Yarbrough v. Decatur
Hous. Auth., 941 F.3d 1022, 1026 (11th Cir. 2019). Summary judgment should be
granted only if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). There is a genuine
issue of material fact “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d
1386, 1396 (11th Cir. 1994) (quotation marks omitted), opinion modified on other
grounds on reh’g, 30 F.3d 1347 (11th Cir. 1994). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge. The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 1396(quotation marks omitted and alteration adopted). “In other words, if a reasonable
fact finder could draw more than one inference from the facts, and that inference
creates a genuine issue of material fact, then the court should refuse to grant
summary judgment.” Id. (quotation marks omitted and alterations adopted).
10
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 11 of 31
We review the District Court’s ruling on discovery matters only for abuse of
discretion. Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir.
2007) (per curiam). Therefore, “we will leave the district court’s ruling on the
motion undisturbed unless the district court has made a clear error of judgment, or
has applied the wrong legal standard.” Jordan v. Comm’r, Miss. Dep’t of Corr.,
947 F.3d 1322, 1326–27 (11th Cir. 2020) (quotation marks omitted), cert. denied,
141 S. Ct. 251 (2020).
III. DISCUSSION
Ms. Khoury raises three issues on appeal. First, she argues that in granting
summary judgment to Officer Williams, the District Court erred by failing to view
the facts and inferences in the light most favorable to her. Second, she says the
District Court erred by granting summary judgment to the School Board on her
Monell claim. Finally, she claims the District Court erred in upholding the
Magistrate Judge’s denial of her motion to compel unredacted Baker Act reports.
We discuss each issue in turn.
A. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT
IN FAVOR OF OFFICER WILLIAMS.
1. The False Arrest and First Amendment Retaliation Claims
The District Court granted summary judgment in favor of Officer Williams
on two of Ms. Khoury’s claims based on its finding that Williams had arguable
probable cause to detain Khoury, concluding he was entitled to qualified immunity.
11
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 12 of 31
First, the District Court held that “[a]lthough [Ms. Khoury] contests that she did
not exhibit the behaviors Officer Williams describes and that she did not push
Officer Williams,” Williams “had arguable probable cause to believe that . . .
Khoury was a threat to herself or others.” Based on this finding, the District Court
found that Ms. Khoury’s false arrest claims under both state and federal law, and
her claim for First Amendment retaliation, were barred.
Ms. Khoury argues that the District Court “credited Officer Williams’[s]
account of what happened that night instead of Khoury’s account,” and, as a result,
it made an improper credibility determination to resolve a factual dispute at the
summary judgment stage. This record supports her argument. The District Court
recognized the dispute of facts, but then proceeded to impermissibly weigh the
evidence and assess (and discount) Ms. Khoury’s credibility.
a. The Qualified Immunity Standard
Qualified immunity offers “complete protection for government officials
sued in their individual capacities” when the official’s conduct does not violate
clearly established law. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th
Cir. 2005) (quotation marks omitted). Therefore, if the District Court properly
determined that Officer Williams is entitled to qualified immunity, we must affirm
the grant of summary judgment in his favor.
12
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 13 of 31
In order to assert a qualified immunity defense, a government official must
first establish that he was acting within his discretionary authority at the time of the
challenged conduct. Mercado, 407 F.3d at 1156. Because there is no dispute
Officer Williams was acting within his discretionary authority, the burden shifts to
Ms. Khoury to show (1) that Williams “violated a constitutional right”; and (2) that
the “right was clearly established at the time of the incident.” Id. In order to meet
her burden for the false arrest claims, 4 Ms. Khoury simply must show Officer
Williams did not have probable cause to detain her. See Carter v. Butts Cnty., 821
F.3d 1310, 1319 (11th Cir. 2016) (“By now it is well established that ‘[a]
warrantless arrest without probable cause violates the Fourth Amendment and
forms a basis for a section 1983 claim.’” (quoting Ortega v. Christian, 85 F.3d
1521, 1525 (11th Cir. 1996)); Henley v. Payne, 945 F.3d 1320, 1329 n.2 (11th Cir.
2019) (holding that probable cause constitutes an absolute bar to § 1983 claims
alleging false arrest); Bolanos v. Metro. Dade Cnty., 677 So. 2d 1005, 1005 (Fla.
3d DCA 1996) (per curiam) (holding that probable cause is a complete bar to state
law false arrest claims). Ms. Khoury’s First Amendment retaliation claim also
turns on probable cause, so we must discuss that first. See Redd v. City of
4
Ms. Khoury raised claims of false arrest against Officer Williams under both Florida
law and the Fourth Amendment.
13
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 14 of 31
Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) (holding that probable cause
generally bars claims for First Amendment violations).
b. Arguable Probable Cause to Detain Ms. Khoury
We, like the District Court, must look to the totality of the circumstances to
determine whether arguable probable cause existed to detain Ms. Khoury under
Florida’s Baker Act. See Davis v. Williams, 451 F.3d 759, 763–64 (11th Cir.
2006). In order to involuntarily commit someone for a mental health examination
under the Baker Act, the officer must have “reason to believe that the person has a
mental illness and because of . . . her mental illness . . . [t]here is a substantial
likelihood that without care or treatment the person will cause serious bodily harm
to . . . herself or others in the near future, as evidenced by recent behavior.” Fla.
Stat. § 394.463(1)(b)(2) (emphases added). 5 Arguable probable cause exists if a
reasonable officer, knowing the information Officer Williams possessed, could
have believed that probable cause existed to involuntarily commit Ms. Khoury.
See Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993); Durruthy v.
Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003). Vague notions about what a person
might do—for example, a belief about some likelihood that without treatment a
person might cause some type of harm at some point—does not meet this standard.
5
The Baker Act provides that an officer “shall take a person who appears to meet the
criteria for involuntary examination into custody and deliver the person or have . . . her delivered
to an appropriate, or the nearest, facility . . . for examination.” Fla. Stat. § 394.463(2)(a)(2).
14
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 15 of 31
In this case, Officer Williams arrived at the scene as a result of a 911 call.
When he arrived, he was told Ms. Khoury was “combative and aggressive”
towards Ms. Zubilliaga when she asked Khoury to stop filming. Ms. Zubilliaga
identified Ms. Khoury as the woman standing across the street. Officer Williams
spoke to Ms. Khoury for three or four minutes, and she told him she believed the
cars on the street were parked illegally. Officer Williams told Ms. Khoury the cars
were legally parked and they had a right to be there. Ms. Khoury then “escalated a
bit” and started questioning Officer Williams about why he opened the gate near
the baseball field. At this point Officer Williams walked back across the street to
explain to Ms. Zubilliaga that there was “absolutely nothing [he could] do” about
Ms. Khoury filming because she had a First Amendment right to do so. Other
people began to gather, and Officer Williams heard from them that this was not the
first time Ms. Khoury had filmed near the field, and that she had been
confrontational when asked to stop on earlier occasions. Based on this information
alone, and before any altercation with Ms. Khoury, Officer Williams had already
concluded—and in fact told Ms. Zubilliaga—that “personally I don’t think she’s
well.”
Despite this remark at the scene, Officer Williams testified he had not yet
made the decision to detain Ms. Khoury. That came later, when, according to him,
Ms. Khoury pushed him, they both fell to the ground, and while he was in the
15
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 16 of 31
process of trying to help her up, “she went to screaming that I was attacking her.”
Officer Williams testified he believed Ms. Khoury was a threat to herself or others
because “her behavior itself became so erratic”; she was exhibiting “highs and
lows . . . rapid speech, yelling, rapid eye movement”; “she was actively resisting”
arrest; “she had placed her hands on” him; and “she had disorganized thoughts . . .
because at one point” Khoury recognized him as “a law enforcement officer and in
another point” she saw him as “the attacker and she wanted someone to call[] the
police” on him.
Ms. Khoury disputes all of these facts. See supra at 3–7. The District Court
acknowledged that the circumstances leading up to Officer Williams’s decision to
detain Ms. Khoury pursuant to the Baker Act were disputed. Indeed, the court
recited that Ms. Khoury “contests that she did not exhibit the behaviors Officer
Williams describes and that she did not push Officer Williams.” But the court
went on to find that Ms. Khoury did in fact push Officer Williams and was
exhibiting “concerning” and “odd” behaviors. In order to make these findings, the
District Court decided the testimony was two against one—Officer Williams’s and
Ms. Zubilliaga’s words against Ms. Khoury’s. In doing this, the District Court
impermissibly weighed the evidence at the summary judgment stage. “When the
nonmovant has testified to events, we do not . . . pick and choose bits from other
witnesses’ essentially incompatible accounts (in effect, declining to credit some of
16
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 17 of 31
the nonmovant’s own testimony) and then string together those portions of the
record” to form the story of the events. Evans v. Stephens, 407 F.3d 1272, 1278
(11th Cir. 2005) (en banc). There is simply no basis for “imposing a corroboration
gloss on Rule 56.” United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018) (en
banc) (quotation marks omitted). “[E]ven in the absence of collaborative evidence,
a plaintiff’s own testimony may be sufficient to withstand summary judgment.”
Id. (quotation marks omitted).
When viewing the facts in the light most favorable to Ms. Khoury, as we
must, there are nothing but disputed facts on the matter of whether Officer
Williams had probable cause. According to Ms. Khoury, she was not being
combative, aggressive, or threatening. She testified she did not push Officer
Williams and was not doing anything unlawful. Officer Williams also testified that
Ms. Khoury did not physically or verbally threaten anybody, including herself.
Officer Williams apparently concluded Ms. Khoury was a danger when,
after Williams seized her, she began screaming she was being attacked. See Oral
Argument Recording at 15:32–16:05 (Feb. 11, 2020). But in Ms. Khoury’s mind,
Officer Williams had gone “rogue” and she believed she needed another police
agency to step in and protect her from an unlawful arrest. The District Court found
Ms. Khoury’s explanation lacked credibility in light of the court’s “independent
review of the video” that showed “Officer Williams was not attacking her.” The
17
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 18 of 31
court essentially found that Ms. Khoury was delusional. See Oral Arg. at 15:56–
16:25. But it was required to leave the credibility determinations and the drawing
of legitimate inferences to the jury. Cox, 17 F.3d at 1396.
If we are to properly perform the summary judgment inquiry, and credit Ms.
Khoury’s version of the facts, we must accept, for now, that Officer Williams
twisted her arm behind her back simply because she was filming the scene. 6 Ms.
Khoury testified that Officer Williams pushed her—not the other way around, and
the record shows Williams had already drawn the conclusion Khoury was “not
mentally well” simply because she didn’t take him at his word that the cars were
parked legally. But Officer Williams admits that Ms. Khoury was not violating the
law or harming anyone by filming, and other eyewitnesses testified that Khoury
was not a threat—her response was simply irrational. Yet even if, as reflected by
these facts, Ms. Khoury was acting strangely, that alone does not form a basis
under which a reasonable officer would conclude that Khoury was a danger to
herself or others. 7 Thus based on the information known to Officer Williams, no
6
No one disputes that Ms. Khoury had the right to film Ms. Zubilliaga and Officer
Williams and was therefore engaged in lawful conduct. See R. Doc. 160-3 at 10 (Officer
Williams testified that Ms. Khoury had a First Amendment right to film the scene and informed
Ms. Zubilliaga that “there’s absolutely nothing I can do about her filming”); R. Doc. 188 at 20
(“[T]he Court recognizes that Plaintiff Khoury had a right to videotape Officer Williams.”).
7
Florida courts require more than erratic behavior or knowledge that a person is suffering
from a mental illness. Compare D.F. v. State, 248 So. 3d 1232, 1234 (Fla. 5th DCA 2018) (per
curiam) (“[T]he mere fact that an individual might suffer from a mental illness is not sufficient
standing alone to justify involuntary commitment.”); Wade v. Ne. Fla. State Hosp., 655 So. 2d
125, 125 (Fla. 1st DCA 1995) (holding that conclusory testimony, unsubstantiated by the record,
18
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 19 of 31
arguable probable cause existed to conclude Ms. Khoury was a danger to herself or
others. See May v. City of Nahunta, 846 F.3d 1320, 1327–28 (11th Cir. 2017) (“In
the context of a mental-health seizure, . . . the Fourth Amendment requires the
officer to have probable cause to believe the person is dangerous either to h[er]self
or to others.” (quotation marks omitted)); Fla. Stat. § 394.463(1)(b)(2).
Because the District Court weighed testimony and made credibility
determinations, it erroneously found that Officer Williams had arguable probable
cause to detain Ms. Khoury. We must therefore vacate the District Court’s
summary judgment order holding that Officer Williams had qualified immunity
and that as a result, Ms. Khoury’s false arrest claim was barred.
that a person has a “potential for aggression, and the possibility of substantial harm to his well-
being” is insufficient to satisfy the criteria for a Baker Act order of continued involuntary
placement for treatment); Blue v. State, 764 So. 2d 697, 698 (Fla. 1st DCA 2000) (per curiam)
(holding that evidence that a person is “unstable,” has “emotional outbursts [that] scare her
family,” is pleasant sometimes but “generally very argumentative and hostile,” and caused
conflicts with others is insufficient to satisfy the criteria for a Baker Act order of continued
involuntary placement for treatment); Williams v. State, 522 So. 2d 983, 984 (Fla. 1st DCA
1988) (holding that the “mere need for treatment” for paranoid schizophrenia was insufficient to
show that the appellant was a present danger to herself or others at the time she was ordered
committed and explaining that “a non-dangerous individual, capable of surviving safely in
freedom by herself or with the help of others, should never be involuntarily committed”) with
Lukehart v. State, 70 So. 3d 503, 517–18 (Fla. 2011) (detaining man who told officers he had
tried to commit suicide earlier in the day and implicated himself in the murder of a child);
Collins v. State, 125 So. 3d 1046, 1049 (Fla. 4th DCA 2013) (detaining man after family and
neighbors expressed concern he might be a threat because of his “unwavering belief” that his
neighbors kidnapped and murdered his child); Fleurant v. City of Port St. Lucie, No. 19-14032-
CV, 2019 WL 12021806, at *6 (S.D. Fla. Nov. 14, 2019), report and recommendation adopted,
No. 2:19-CV-14032, 2019 WL 12025012 (S.D. Fla. Dec. 10, 2019) (finding there was probable
cause to believe man was dangerous to himself or others when officers knew he “was cutting up
the house with a machete and acting strangely”; siblings said he “was going crazy” and needed a
mental examination; and he told officers “to go ahead and kill him”) (quotation marks omitted).
19
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 20 of 31
c. The First Amendment Retaliation Claim
As discussed, the District Court found that Officer Williams was entitled to
qualified immunity on Ms. Khoury’s First Amendment claim because he had
arguable probable cause to detain her under the Baker Act, “even if she was
exercising her First Amendment right when that decision was made.” In reaching
that finding, the District Court held that Ms. Khoury could not state a First
Amendment retaliation claim. That was error, and Officer Williams is not entitled
to summary judgment on this claim.
Because it is undisputed that Officer Williams was acting within the scope
of his discretionary authority, the burden is on Ms. Khoury to establish that Officer
Williams violated her First Amendment rights, and that those rights were clearly
established at the time of the 2015 incident. Mercado, 407 F.3d at 1156.
First, in order to show Officer Williams retaliated against her in violation of
the First Amendment, Ms. Khoury must establish that (1) her speech was
constitutionally protected, (2) the defendant’s retaliatory conduct adversely
affected the protected speech, and (3) there is a causal connection between the
retaliatory actions and the adverse effect on speech. Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005).
It is undisputed that Ms. Khoury has established the first element. The
District Court found, and Officer Williams agrees, that Ms. Khoury’s filming of
20
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 21 of 31
Officer Williams and the surrounding area is protected by the First Amendment.
See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). This right
is also clearly established under these circumstances.8 See id.Ms. Khoury has also established the second element required for First
Amendment retaliation. Retaliatory conduct adversely affects protected speech if
the conduct “would likely deter a person of ordinary firmness from the exercise of
First Amendment rights.” Bennett, 423 F.3d at 1254. A person of ordinary
firmness would surely be deterred from exercising her First Amendment rights
after being detained without probable cause; suffering a dislocated elbow—which
required surgery—while being detained; and being involuntarily committed and
forced to undergo a mental health examination.
Finally, questions of fact remain as to the third element of Ms. Khoury’s
First Amendment retaliation claim, which addresses whether there is a causal
8
The facts of this case are a far cry from those in Crocker v. Beatty, 995 F.3d 1232 (11th
Cir. 2021), in which a bystander who was “spectating on the median of a major highway at the
rapidly evolving scene of a fatal crash” and was “arguably in violation” of Florida law did not
have a clearly established right to take pictures of the scene with his cell phone. Id. at 1237–38,
1241–42 (quotation marks omitted)). Notably, Officer Williams recognizes that Ms. Khoury was
not violating any laws or harming anyone while she was filming and that he knew Khoury had a
First Amendment right to film the scene (and informed Ms. Zubilliaga of the same). R. Doc.
160-3 at 10. Additionally, School Board Chief of Police Ian Moffett testified that it was
department policy “that the public has a right to record” officers and acknowledged “[t]here’s
nothing illegal about filming somebody, but the officer has a right to inquire why somebody is
filming him.” R. Doc. 151-18 at 27, 31. Therefore, under these circumstances, every reasonable
police officer in Officer Williams’s position would have known—and in fact did know—that Ms.
Khoury had a right to videotape the scene.
21
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 22 of 31
connection between the retaliatory actions and the adverse effect on speech.
Bennett, 423 F.3d at 1250. As previously discussed, there is a significant dispute
about the circumstances leading up to Officer Williams’s decision to detain Ms.
Khoury under the Baker Act. When viewed in the light most favorable to Ms.
Khoury, we must accept for now that Officer Williams twisted her arm behind her
back and detained her simply because she was filming the scene. And it is clearly
established that a person has the right to be free from retaliation for exercising her
First Amendment freedoms. See id. at 1255–56 (“This Court and the Supreme
Court have long held that state officials may not retaliate against private citizens
because of the exercise of their First Amendment rights.”). “The reason why such
retaliation offends the Constitution is that it threatens to inhibit exercise of the
protected right.” Id. at 1253 (quotation marks omitted). Because a genuine dispute
of material fact exists as to whether there was a causal connection between Ms.
Khoury’s speech and the alleged retaliatory action by Officer Williams, we hold
the District Court improperly granted summary judgment in favor of Officer
Williams on Khoury’s First Amendment retaliation claim.
2. The Excessive Force Claim
In addition to its finding that Officer Williams was entitled to qualified
immunity because he had arguable probable cause to arrest Ms. Khoury, the
District Court found that the facts and law did not support Khoury’s excessive
22
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 23 of 31
force claim because Williams used an appropriate level of force. When analyzing
a typical excessive force claim, we would decide whether Officer Williams’s use
of force was excessive in violation of the Fourth Amendment. 9 But here, Ms.
Khoury argues only that Officer Williams used excessive force because Officer
Williams “had no cause whatsoever” to detain her. When, like here, an excessive
force claim “is predicated solely on allegations the arresting officer lacked the
power to make an arrest, the excessive force claim is entirely derivative of, and is
subsumed within, the unlawful arrest claim.” Bashir v. Rockdale Cnty., 445 F.3d
1323, 1332 (11th Cir. 2006). Because Ms. Khoury is arguing only that any force
was excessive because of the lack of probable cause, this claim is subsumed by the
false arrest claims and thus fails as a matter of law. Cf. Hardigree v. Lofton, 992
F.3d 1216, 1231 n.7 (11th Cir. 2021) (explaining that excessive force claim was
not subsumed by unlawful arrest claims because the plaintiff also argued that even
if there was probable cause, the force was constitutionally unreasonable).
Nevertheless, Ms. Khoury can still recover damages for the force Officer Williams
used to detain her. Bashir, 445 F.3d at 1332 (“[T]he damages recoverable on an
unlawful arrest claim include damages suffered because of the use of force in
effecting the arrest.” (quotation marks omitted)).
9
The District Court performed this analysis, finding that Ms. Khoury’s active resistance
to Officer Williams’s efforts to detain her “alone weighs in favor of finding that Williams’s
actions were reasonable under the circumstances.”
23
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 24 of 31
B. THE DISTRICT COURT DID NOT ERR BY GRANTING SUMMARY
JUDGMENT TO THE SCHOOL BOARD ON MS. KHOURY’S MONELL
CLAIM
Ms. Khoury also appeals the District Court’s grant of summary judgment to
the School Board on her Monell claim. Municipalities like the School Board may
only be held liable under § 1983 if “action pursuant to official municipal policy of
some nature caused a constitutional tort.” Monell, 436 U.S. at 691, 98 S. Ct. at
2036. Municipal liability may be based on, among other things, “a practice or
custom that is so pervasive, as to be the functional equivalent of a policy adopted
by the final policymaker.” Church v. City of Huntsville, 30 F.3d 1332, 1342–43
(11th Cir. 1994). Under that theory, which is the only argument properly before
us,10 a plaintiff may establish a policy or custom exists by showing a “persistent
and wide-spread practice” and the government’s actual or constructive knowledge
of that practice. Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.
1986). Generally, “random acts or isolated incidents are insufficient to establish a
custom or policy.” Id. In essence, to impose liability, Ms. Khoury must show:
“(1) that [her] constitutional rights were violated; (2) that the municipality had a
custom . . . that constituted deliberate indifference to that constitutional right; and
10
On appeal, Ms. Khoury claims for the first time that the School Board’s Standard
Operating Procedure constitutes a formal written policy instituted by a final policymaker, which
provides another basis for Monell liability. Because we have “repeatedly held that an issue not
raised in the district court and raised for the first time in an appeal will not be considered by this
court,” we will not address Ms. Khoury’s formal policy argument further. Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks omitted).
24
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 25 of 31
(3) that the . . . custom caused the violation.” McDowell v. Brown, 392 F.3d 1283,
1289 (11th Cir. 2004). Ms. Khoury’s evidence is not sufficient to create a dispute
of fact as to whether the School Board had a pervasive custom or practice of
improperly committing people for an involuntary mental health examination under
the Baker Act.
In order to show the School Board had a pervasive practice or custom of
involuntarily committing “people who did not qualify” under the Baker Act, Ms.
Khoury relies on the testimony of “the School Board’s whistleblowing
employees,” teachers, principals, and staff. There is some indication that the
School Board investigated an overreliance on use of the Baker Act in 2012. The
Chairperson of the Crisis Management Program for Miami-Dade County Public
Schools testified that on several occasions, his previous supervisor promoted
reliance on the Baker Act when officers did not think it was warranted. One
detective also testified that in 2012, he notified the School Board that the Baker
Act was being used to manipulate crime statistics under then-Chief of Police
Charles Hurley. The administrative officer to Chief Hurley testified that she had
been concerned about an increase in Baker Act incidents and a corresponding
reduction of arrests at the time. She had received phone calls complaining about
the School Board’s Crisis Management Program’s reliance on the Baker Act.
There was also evidence that Chief Hurley’s administrative officer had passed
25
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 26 of 31
information about Chief Hurley’s misuse of the Baker Act to manipulate crime
statistics up the chain of command.
Upon receiving complaints made against Chief Hurley, the Florida
Department of Law Enforcement conducted an inquiry, but ultimately decided
there was not enough information to justify a criminal investigation. The School
Board Police Department conducted a second review, which was led by former
Chief of Police Gerald Kitchell. Chief Kitchell found “‘no validity’ to the
allegation that Chief Hurley ‘reduced arrests by directing officers to initiate Baker
Acts,’ despite not interviewing individuals who had submitted complaints, or
individuals who had seen or been subject to a Baker Act arrest.” A third review
was completed after Ian Moffett became Chief of Police in May of 2013. That
review revealed that a significant number of Baker Act incidents occurred before
Moffett became Chief, that they were all in compliance with the statute, and that
since his appointment, the number of Baker Act incidents had dropped every year
since the 2012–2013 academic year. 11
In addition to the facts above, Ms. Khoury cites to testimony from the
School Board’s non-law enforcement employees regarding seven incidents that
occurred in 2013 and 2016 to support her assertion that there is a custom or
11
There was a total 64% reduction in Baker Act incidents from the 2012–2013 academic
year to the 2015–2016 academic year.
26
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 27 of 31
practice of relying on the Baker Act when it does not apply. The District Court
recounted each reported incident, which involved: (1) a student who threw a shoe
at a security monitor after refusing to take her diabetes medication; (2) a student
who attempted to assault a teacher; (3) a student who had been in a physical
altercation with two students and said he was going to kill them using a gun; (4) a
student who was found with a knife in his pocket; (5) a student who hit a security
monitor in the head after the security monitor attempted to diffuse an argument
between the student and his sister; (6) a student who had been in an altercation
with another student and then yelled at the principal and refused to comply with
the principal’s demands; and (7) a student who had been caught smoking tobacco
in the school bathroom.
The District Court held that Ms. Khoury failed to provide evidence of a
custom or practice on three grounds. First, although there may be some evidence
suggesting “there were forces encouraging the . . . [use of] the Baker Act in 2012,
[Ms. Khoury] has not pointed to evidence suggesting this practice continued
beyond that period.” Second, the Baker Act incident reports Ms. Khoury relied on
were distinguishable from her case because “there is no dispute that the other
incidents involved Baker Act detentions of students during school hours.” Finally,
the incidents Ms. Khoury relied on that occurred in 2013 and 2016 did not “result[]
in complaints or findings that the Baker Act was improperly relied upon”—and, in
27
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 28 of 31
fact, simply “describe[] other examples of when the School Board police thought
employing the Baker Act was warranted, which is insufficient to show a
constitutional violation.”
We agree the evidence Ms. Khoury relies on is either too remote in time or
does not show a constitutional violation. The evidence from 2012, which suggests
there may have been an issue with the School Board improperly Baker Acting
students “to dilute arrests” under former Chief Hurley, occurred three years before
Ms. Khoury was detained. See Church, 30 F.3d at 1346 (holding that one 1991
study’s single use of the word “rousted” was “not conclusive” as to the existence
of City effort to expel the homeless in 1993). Chief Hurley is no longer the Chief
of Police and Chief Moffett who replaced him appears to have remedied any
problem stemming from that administration. Cf. Skop v. City of Atlanta, 485 F.3d
1130, 1145 (11th Cir. 2007) (noting that the city’s discipline of an officer
“suggests that [the officer’s] actions were inconsistent with [the police
department’s] goals and training” and affirming grant of summary judgment to the
city on Monell claim). Neither is there any evidence indicating the Baker Act
incidents in 2013 and 2016 were unwarranted. As such, Ms. Khoury has not
established that there were prior constitutional violations. See Church, 30 F.3d at
1345–46 (arrests for public intoxication were not evidence of deliberately
indifferent custom because the arrestees were intoxicated).
28
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 29 of 31
Without evidence establishing a pervasive custom or practice of committing
people who did not qualify for an involuntary mental health examination pursuant
to the Baker Act, Ms. Khoury’s detention must be evaluated as a single incident.
Simmons v. Bradshaw, 879 F.3d 1157, 1168 (11th Cir. 2018). Even assuming
there is an issue of fact as to whether Officer Williams had probable cause to
detain Ms. Khoury, and that her detention may have been unconstitutional, “this
incident alone does not establish a custom” and Khoury’s Monell claim must fail.
Id. at 1168–69.
C. THE MAGISTRATE JUDGE’S ORDER ON MS. KHOURY’S MOTION
TO COMPEL WAS NOT CLEARLY ERRONEOUS OR CONTRARY TO
LAW.
Federal Rule of Civil Procedure 72 governs both nondispositive and
dispositive pretrial orders of magistrate judges. See Fed. R. Civ. P. 72(a)–(b). A
party may object to a nondispositive order, but the district judge must only
“consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also Jordan, 947
F.3d at 1327.
As we have described, Ms. Khoury sought to contact and elicit testimony
from students who were Baker Acted by School Board Police in order to prove her
claims. Ms. Khoury claims the Magistrate Judge’s denial of her motion to compel
29
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 30 of 31
was done “without analyzing the facts, case law, or relevant statute regarding the
disclosure [of] this information,” and thus was clearly erroneous.
This argument fails. The District Court’s rulings are in keeping with
Florida’s interest in protecting minor students’ privacy rights and courts’ interest in
limiting the burden on non-parties to litigation. Cf. Berkeley v. Eisen, 699 So. 2d
789, 791 (Fla. 4th DCA 1997) (quashing discovery order compelling production of
addresses because “[t]he fact that the party seeking discovery may already have
some of the information sought does not negate the rights of such non-parties to
privacy and confidentiality as to their personal information” (quotation marks
omitted and alterations adopted)); Miller v. Savanna Maint. Ass’n Inc., 979 So. 2d
1235, 1237 (Fla. 4th DCA 2008) (“In assessing discovery requests the trial court
must balance the competing interests of a litigant’s need to know information
relevant to the case with a non-party’s privacy interest in the information.”). And,
because we affirm the District Court’s grant of summary judgment to the School
Board on Ms. Khoury’s Monell claim, this discovery ruling did not “result[] in
substantial harm” to Khoury’s case. Iraola & CIA, S.A. v. Kimberly-Clark Corp.,
325 F.3d 1274, 1286 (11th Cir. 2003) (quotation marks omitted).
IV. CONCLUSION
For these reasons, we AFFIRM the District Court’s order granting summary
judgment to Officer Williams on Ms. Khoury’s excessive force claim, but
30
USCA11 Case: 18-11430 Date Filed: 07/07/2021 Page: 31 of 31
REVERSE the remaining portions of the order and REMAND Ms. Khoury’s false
arrest and First Amendment retaliation claims to the District Court for further
proceedings. We AFFIRM the District Court’s order granting summary judgment
to the School Board.
31